Beruflich Dokumente
Kultur Dokumente
historic remedy of last resort for cases of extraordinary need or desert, cannot be relied
upon in the current political climate.
In 2004, in response to a recommendation of the ABA Justice Kennedy Commission, the
ABA House urged jurisdictions to establish standards for reduction of sentence in
exceptional circumstances, both medical and non-medical, arising after imposition of
sentence, including but not limited to old age, disability, changes in the law, exigent
family circumstances, heroic acts, or extraordinary suffering. It also urged the
Department of Justice to make greater use of the federal sentence reduction authority in
Section 3582(c)(1)(A)(i), and asked this Commission to promulgate policy guidance for
sentencing courts and the Bureau of Prisons in considering petitions for sentence
reduction, which will incorporate a broad range of medical and non-medical
circumstances.
I. Statutory and Regulatory Background
Section 3582(c)(1)(A)(i) was enacted as part of the original 1984 Sentencing Reform Act
(SRA), and continues an authority first granted courts in the 1976 Parole Commission
and Reorganization Act. See 18 U.S.C. 4205(g)(1980). This authority permits a court
at any time, upon motion of the Bureau of Prisons (BOP), to reduce a prisoners sentence
to accomplish his or her immediate release from confinement. The only apparent
limitations on the courts authority under 3582(c)(1)(A)(i), once its jurisdiction has
been invoked by a BOP motion, is that it must find 1) extraordinary and compelling
reasons to justify such a reduction, and 2) that the reduction is consistent with
applicable policy statements issued by the Sentencing Commission.
The legislative history of the SRA establishes that Congress intended the judicial
sentence reduction authority in 3582(c)(1)(A)(i) to be broadly construed, consistent
with the then-existing sentence reduction authority, to allow a court to address the
unusual case in which the defendants circumstances are so changed that it would be
inequitable to continue confinement. See S. Rep. No. 225, 98th Cong., 1st Sess. 37150 at 5. See also id. at 55 (reduction may be justified for changed circumstances
including severe illness [or] other cases in which other extraordinary and compelling
circumstances justify a reduction. . . .). In continuing the courts ability to entertain and
act on sentence reduction motions filed by BOP, Congress signaled its intention to permit
sentence reduction in a variety of circumstances, not simply those involving a prisoners
medical condition. See, e.g., U.S. v. Diaco, 457 F. Supp. 371 (D.N.J., 1978)(federal
prisoners sentence reduced to minimum term because of unwarranted disparity among
codefendants); U.S. v. Banks, 428 F. Supp. 1088 (E.D. Mich. 1977)(sentence reduced
because of exceptional adjustment in prison). See also 28 C.F.R. 572.40, 45 Fed. Reg.
23366 (April 4, 1980)(The section may be used, for example, if there is an extraordinary
change in an inmates personal or family situation or if an inmate becomes severely
ill.). 1
The law giving BOP authority to petition the court for sentence reduction was originally designed to
expedite situations that theretofore had required an application for executive clemency to be submitted to
According to figures provided by BOP, it has filed between 15 and 25 motions under 3582(c)(1)(A)(i)
annually since the year 2000. As far as we are aware, no motion has been denied during this time period.
BOP has recently proposed revisions to 28 CFR Parts 571 and 572 (re-titled Sentence Reduction for
Medical Reasons) that would for the first time place categorical limits on BOPs ability to bring sentence
reduction motions. See 71 Fed. Reg. 76619-01 (Dec. 21, 2006)(Reduction in Sentence for Medical
Reasons). In its introduction to the proposed new rule, BOP states that it more accurately reflects our
authority under these statutes and our current policy. See 71 Fed. Reg. at 76619-01. Without some more
extended attempt to reconcile the broad statutory language of 3582(c)(1)(A)(i) with the crabbed new
eligibility criteria, we will not assume that BOP intended to opine on its own legal authority under either
3582(c)(1)(A)(i) or 18 U.S.C. 4205(g), much less on the authority Congress intended to give courts under
these statutes, or the Commission under 28 U.S.C. 994(t). In our comments on the rule we point out that:
It is perfectly true that courts will have no opportunity to act upon motions under 3582(c)(1)(A)(i) if
BOP chooses not to bring any. But it is another thing for BOP to announce a formal regulatory policy that
forecloses consideration by courts of a wide variety of situations that might be thought to present
extraordinary and compelling reasons, and that have in the past been thought to present them.
4
The draft policy statement submitted with this letter differs from the version dated July 12, 2006, only in
adding a new subsection (h) to the list of extraordinary and compelling reasons. in the proposed
Application Note, and renumbering old subsection (h) as subsection (i).
We propose three criteria for determining when extraordinary and compelling reasons
justify release: 1) where the defendants circumstances are so changed since the sentence
was imposed that it would be inequitable to continue the defendants confinement,
without regard to whether or not any changes in the defendants circumstances could
have been anticipated by the court at the time of sentencing; 2) where information
unavailable to the court at the time of sentencing becomes available and is so significant
that it would be inequitable to continue the defendants confinement; or 3) where the
court was prohibited at the time of sentencing from taking into account certain
considerations relating to the defendants offense or circumstances; the law has
subsequently been changed to permit the court to take those considerations into account;
and the change in the law has not been made generally retroactive so as to fall under 18
U.S.C. 3582(c)(2).
We then propose, as part of an application note, nine specific examples of extraordinary
and compelling reasons, all of which find support in the legislative history of the 1984
Act, or in past administrative practice under this statute or its old law predecessor, 19
U.S.C. 4205(g). These reasons are: 1) where the defendant is suffering from a terminal
illness; 2) where the defendant is suffering from a permanent physical or mental
disability or chronic illness that significantly diminishes the prisoners ability to function
within the environment of a correctional facility; 3) where the defendant is experiencing
deteriorating physical or mental health as a consequence of the aging process; 4) where
the defendant has provided significant assistance to any government entity that was not or
could not have been taken into account by the court in imposing the sentence; 5) where
the defendant would have received a significantly lower sentence under a subsequent
change in applicable law that has not been made retroactive; 6) where the defendant
received a significantly higher sentence than similarly situated codefendants because of
factors beyond the control of the sentencing court; 7) where the defendant has
experienced an extraordinary and compelling change in family circumstances, such as the
death or incapacitation of family members capable of caring for the defendants minor
children; 8) where the defendants sentence was based upon a mistake of fact or law so
significant that it would be inequitable to continue the defendants confinement, and for
which there is no other legal remedy; 5 or 9) where the defendants rehabilitation while in
prison has been extraordinary.
Finally, we propose that neither changes in the law nor a prisoners rehabilitation should,
by themselves, be sufficient to justify sentence reduction.
As to the scope of a courts sentence reduction authority, we believe that Congress
intended a court to have authority to reduce a term of imprisonment to whatever term it
deems appropriate in light of the particular reasons put forward for the reduction. For
example, it would be appropriate for a court to reduce a term of imprisonment to time
5
This eighth example of an extraordinary and compelling reason has been added to the policy statement
since the July 12, 2006 draft as a new subsection (h), old subsection (h) having been renumbered as (i). We
believe this situation is one contemplated by subsection (b)(2) of the policy statement (information
unavailable to the court at the time of sentencing becomes available and is so significant that it would be
inequitable to continue the defendants confinement).
served where sentence reduction is sought because the prisoner is close to death. (It
appears that reduction to time served is ordinarily what is sought in a BOP motion, since
almost all of the cases it has brought over the past 20 years involve imminent death.) On
the other hand, where reduction of sentence is sought on grounds of, e.g., disparity or
undue severity, or a change in the law not made retroactive, it would be appropriate for
the court to be guided by the facts of the particular case, the governments
recommendation, and information provided by or on behalf of the prisoner. See, e.g., U.S.
v. Diaco, supra (sentence reduced to minimum term in case involving disparity); U.S. v.
Banks, supra (sentence reduced to time served in case involving extraordinary
rehabilitation).
In reducing a term of imprisonment, a court may (but is not required to) substitute a term
of community supervision equivalent to the original prison term. A 2002 amendment to
3582(c)(1)(A)(i) makes clear that the court in reducing a term of imprisonment may
impose a term of probation or supervised release with or without conditions that does not
exceed the unserved portion of the original term of imprisonment. We believe that any
period of supervised release originally imposed would remain in effect over and above
any additional period of supervision imposed by the court, since the courts power to
reduce a sentence under this statute extends only to the term of imprisonment.
We would like to take this opportunity to reiterate comments made in our March 15,
2006, testimony about the limits of a courts authority under this statute, to allay concerns
that it could undercut the core values of certainty and finality in sentencing embodied in
the federal sentencing guidelines scheme. The courts jurisdiction under
3582(c)(1)(A)(i) is dependent upon BOPs filing a motion. We believe that the
government can be counted upon to take a careful course and recommend sentence
reduction to the court only where a prisoners circumstances are truly extraordinary and
compelling. Yet we also believe that the government will find it useful to have guidance
from the Commission about the options available to it for making a mid-course correction
where the term of imprisonment originally imposed appears unduly harsh or unjust in
light of changed circumstances. We are confident that BOPs decision to file a motion
with the court will be informed not just by its perspective as jailer, but also by the broader
perspective of the Justice Department of which it is a part. 6
Cf. David M. Zlotnick, Federal Prosecutors and the Clemency Power, 13 Fed Sent. R. 168
(2001)(analyzing five commutations granted by President Clinton six months before the end of his term, in
four of which the prosecutor either supported clemency or had no objection to the grant).
The letters dire forecasts about the consequences of the Commissions deviating from the BOP operating
policy in terms of wasted judicial and executive time and resources, or in terms of management of prisoner
populations, seem at the least overblown. BOP retains operational responsibility for determining whether a
particular case satisfies the test of extraordinary and compelling within the general policy framework
established by the Commission.
9
To the extent BOPs decision to limit sentence reduction motions to two narrow classes of medical cases
would make it impossible for the courts to consider and act in other classes of cases, medical and nonmedical, in which Congress intended them to have the ability to act, it raises the same kinds of
We appreciate the opportunity to provide these comments and hope that they will be
helpful.
Respectfully submitted,
Denise A. Cardman
constitutional concerns. The ABAs position on the Commissions authority to promulgate general policy
for courts considering sentence reduction motions would avoid these concerns as well.